Lex Fori PLLC and Carson J. Tucker Successfully Pursue Attorney Fees on Appeal After Judgment for Widow of Veteran

I’ve already posted about this recent victory, but wanted to highlight one for the more detailed aspects of this case that arose from our aggressive stance in litigation and on appeals and our creativity in exploring all remedies for our clients at all times.

Michigan, as in most states, the courts follow the “American rule” when it comes to recovery of attorney’s fees in litigation. This means that generally both parties pay their own attorney fees. The exception in Michigan and some other jurisdictions is where attorney fees are allowed by statute, court rule, or agreement by and between the parties (think of an arbitration or dispute resolution clause or just a regular contract requiring one or another party to pick up the attorney’s fees in the event of dispute or breach, etc.).

Generally, even if there is a rule or statute, a party must move for attorney fees before the final judgment. In this particular case, exercising a will to win and be creative, we utilized a court rule that allows a defending party in a child custody / domestic relations matter to recover attorney fees and successfully convinced the Court of Appeals to remand to the trial court to hold a hearing on our client’s request even though the request was made in a post-judgment motion.

Interestingly enough, this exercise was undertaken when we were retained about a week before the motions for reconsideration were due in the trial court to try and reverse the entire direction of the proceedings, which had theretofore all been against our client.

The most satisfying part of this particular case is that we did it for the widow of a United States Army veteran who had committed suicide while on active duty. Anyone who follows me knows about 30 to 40 percent of my practice is representing military veterans (usually pro bono and low bono). As a veteran myself Navy 1989 – 2003, and a former JAG officer with the United States Army (2003 – 2016), I am keenly aware of the challenges and issues faced by our nation’s warriors and their families! I fight these legal battles like they fight for us on the front line! No mercy.

Read the opinion here: Martin v Cleveland-Martin

Prins v. Michigan State Police II – Court of Appeals Remands for Circuit Court to Consider Reasonableness of Attorney Fees Award for State Police Violation of FOIA

This case has been up to the Supreme Court, which changed its mind on review, and then down again.  The first issue, which I previously wrote about, concerned the date the 180-day appeal period begins to run from denial of a FOIA request.  Prins v. MSP I

The circuit court ruled the date of receipt by the government agency triggered the period.  The Court of Appeals reversed, holding that the date of the postmarked response denying the request was the trigger date.  This rendered Plaintiff’s appeal timely.  The Supreme Court initially granted the Michigan State Police’s application for leave to appeal, but then vacated that order in January of 2012.  See my other post about this:  Prins v. MSP Supreme Court

This opinion by the Court of Appeals addresses a second appeal by Plaintiff and addresses the important issue of calculating “reasonable attorney” fees that can be awarded for a governmental entity’s arbitrary and capricious denial of a FOIA request.

The Court here, in a published opinion, remands to the circuit court commanding an analysis of that issue pursuant to the Supreme Court’s guidance in Smith v. Khouri, 481 Mich. 519, 526-533 (2008). The Court here concludes that the list of factors enunciated in that Court and as found in Rule 1.5(a) of the Michigan Rules of Professional Conduct apply equally to the question of attorneys fees in FOIA cases.

The important take away from this case, Smith, and others that address the statutory award of attorney fees is that the “reasonableness” calculation is left to the discretion of the trial court judge and can be “more” or “less” than that being requested by the attorneys submitting the bill to the court.

Here is the opinion:  Prins v. MSP II.opn